FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 11, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16397

Non-Argument Calendar

________________________

D. C. Docket No. 08-00315-CR-18-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RASHAUD JOHNSON,

a.k.a. Rocky,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(June 11, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After pleading guilty, Rashaud Johnson appeals his 142-month sentence for
conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a) and 846. Johnson argues that the district court clearly erred in denying

his request for a two-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b).

After review, we affirm.

1

A defendant may receive a two-level reduction in his offense level if he was

a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A defendant is a

minor participant if he is less culpable than most other participants, but his role

could not be described as minimal. U.S.S.G. §3B1.2 cmt. n.5. The defendant has

the burden of establishing his role in the offense by a preponderance of the

evidence. United States v. DeVaron, 175 F.3d 930, 939 (11th Cir. 1999) (en banc).

The determination of whether to apply a minor role reduction “is heavily

dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(c).

“Two principles guide the district court’s consideration: (1) the court must

compare the defendant’s role in the offense with the relevant conduct attributed to

him in calculating his base offense level; and (2) the court may compare the

defendant’s conduct to that of other participants involved in the offense.” United

States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant

conduct attributed to defendant is the same as his actual conduct, “he cannot prove

We review for clear error a district court’s determination as to a defendant’s role in the 1

offense. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

2
that he is entitled to a minor-role adjustment simply by pointing to some broader

scheme for which he was not held accountable.” Id.; see also De Varon, 175 F.3d

at 942-43 (concluding that“when a drug courier’s relevant conduct is limited to

[his] own act of importation, a district court may legitimately conclude that the

courier played an important or essential role in the importation of those drugs”).

As to the second prong, the district court is permitted to “measure the

defendant’s conduct against that of other participants” but only “where the record

evidence is sufficient.” De Varon, F.3d at 934. Furthermore, “[t]he fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.” Id. at 944.

Here, the district court did not clearly err in denying Johnson ’s request for a

minor role reduction. Johnson’s relevant conduct matched his actual conduct; that

is, he was held accountable for only the amount of cocaine he undisputedly

purchased or attempted to purchase from Telly Petty. Thus, Johnson’s argument

2

that he played no role in Petty’s larger drug trafficking operation is unavailing.

Johnson played an important role in his own conspiracy with Petty to purchase

According to Johnson’s presentence investigation report, to which Johnson did not 2

object, Johnson purchased six ounces from Petty on fifteen separate occasions and attempted to

purchase 18 ounces (or a half-kilogram) on August 29, 2008, for a total of 108 ounces, or 3.06

kilograms of cocaine. This was the amount used to calculate Johnson’s base offense level. 

3
cocaine.

3

AFFIRMED.

The conclusion statement in Johnson’s brief states that he seeks the “protection . . . of 3

Section 3553(a)’s mandate to impose a sentence ‘sufficient, but not greater than necessary’” and

contends that the “sentencing judge did not or could not independently evaluate whether the

sentence complies with 18 [U.S.C.] § 3553(a) . . . .” To the extent Johnson is arguing that his

sentence is procedurally unreasonable because the district court erred in refusing to award him

the minor role reduction, that argument is without merit for the reasons discussed. To the extent

Johnson attempts to argue that his sentence is unreasonable for other reasons, he has waived this

issue. See Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (declining to

consider issue identified in brief’s statement of the case, but not elaborated upon in argument on

the merits).

4